Contract
Exhibit
10.6
AMENDMENT No. 3, dated as of
February 28, 2008 (“Amendment”), executed in connection with the Credit
Agreement, dated as of November 23, 2005, and entered into by and among MTM
Technologies, Inc., a New York corporation ("MTM"), MTM Technologies
(California), Inc., a Delaware corporation ("MTM-CA"), MTM Technologies (Texas),
Inc., a Delaware corporation ("MTM-TX"), MTM Technologies (US), Inc., a Delaware
corporation ("MTM-US"), MTM Technologies (Massachusetts), LLC, a Delaware
limited liability company ("MTM-MA") and Info Systems, Inc., a Delaware
corporation ("ISI", MTM, MTM-CA, MTM-TX, MTM-US, MTM-MA and ISI being
collectively, the "Borrowers" and each a "Borrower"); Columbia Partners, L.L.C.
Investment Management, as Investment Manager; and National Electrical Benefit
Fund, as Lender (as amended or modified, the “Credit
Agreement”). Terms which are capitalized in this Amendment and not
otherwise defined shall have the meanings ascribed to such terms in the Credit
Agreement.
WHEREAS, the Borrowers have
requested that the Investment Manager and the Lender: (a) amend
certain financial covenants contained in Section 6.3 of the Credit Agreement,
(b) consent to and approve the incurrence by MTM of certain unsecured
subordinated indebtedness to Pequot Private Equity Fund III, L.P. and/or Pequot
Offshore Private Equity Partners III, L.P., in the principal amount up to
$2,500,000, and (c) waive certain terms of the Credit Agreement in relation to
the foregoing request, and the Investment Manager and the Lender have agreed to
the foregoing requests on the terms contained in this Amendment;
NOW, THEREFORE, in
consideration of the mutual promises contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section
One. Amendment to Credit
Agreement.
(a) Section
6.3(b) of the Credit Agreement is deleted in its entirety, and following is
substituted in lieu thereof:
“(b) Minimum
EBITDA. Each Borrower covenants that as of the last day of
each fiscal quarter, for the fiscal quarter then ended, Borrowers’ EBITDA shall
not be less than the amounts set forth in the table below:
|
The
Fiscal Quarter Ending On:
|
Minimum
EBITDA
|
|
September
30, 2007
|
$720,000
|
|
December
31, 2007
|
$1,584,000
|
|
March
31, 2008
|
$396,000
|
|
June
30, 2008
|
$1,228,500
|
|
September
30, 2008
|
$1,800,000
|
|
December
31, 2008
|
$1,800,000
|
|
March
31, 2009
|
$1,800,000
|
|
June
30, 2009
|
$1,800,000
|
Section
Two. Amendment
of Credit Agreement Definitions. Annex A of the Credit
Agreement is amended by adding the term Second Amendment Date, and the
definition thereof, in the appropriate alphabetical order: “Second Amendment
Date” shall mean February 27, 2008.
Section
Three. Consent
and Waiver. At the request of Borrower, each of
Investment Manager and Lender hereby (a) consents to and approves of, pursuant
to Section 5.2 of the Credit Agreement, the incurrence by the Borrower of
certain unsecured Subordinated Debt to Pequot Private
Equity
Fund III, L.P. and/or Pequot Offshore Private Equity Partners III, L.P. (“Pequot”), in the
principal amount of up to $2,500,000, on terms and conditions substantially as
set forth in the Subordinated Promissory Note attached hereto as Schedule I (the
“Note”), to
fund working capital needs of the Borrower, (b) agrees that the subordination
terms set forth in the Note shall satisfy the requirement for a subordination
agreement, and (c) consents to and approves of payments being made under the
Note in accordance with the subordination terms set forth therein.
Section
Four. Representations
and Warranties. To induce the
Investment Manager and the Lender to enter into this Amendment, each of the
Borrowers hereby warrants and represents to the Investment Manager and the
Lenders as follows:
(a) all
of the representations and warranties contained in the Credit Agreement and each
other Loan Document to which such Borrower is a party continue to be true and
correct in all material respects as of the date hereof, as if repeated as of the
date hereof, except as otherwise disclosed in MTM’s filings pursuant to the
Securities Exchange Act of 1934, as amended, since the date of the Credit
Agreement, and (ii) to the extent of changes resulting from transactions
expressly permitted by the Credit Agreement, this Amendment or any of the other
Loan Documents, or to the extent that such representations and warranties are
expressly made only as of an earlier date;
(b) the
execution, delivery and performance of this Amendment by such Borrower is within
its corporate powers, has been duly authorized by all necessary corporate
action, and such Borrower has received all necessary consents and approvals, if
any are required, for the execution and delivery of this Amendment;
(c) upon
the execution of this Amendment, this Amendment shall constitute the legal,
valid and binding obligation of such Borrower, enforceable against such Borrower
in accordance with its terms, except as such enforceability may be limited by
(i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally
and (ii) general principles of equity; and
(d) neither
the execution and delivery of this Amendment, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof will
(i) violate any law or regulation applicable to any Borrower, (ii) cause a
violation by any Borrower of any order or decree of any court or government
instrumentality applicable to it, (iii) conflict with, or result in the breach
of, or constitute a default under, any indenture, mortgage, deed of trust, or
other material agreement or material instrument to which any Borrower is a party
or by which it may be bound, (iv) result in the creation or imposition of any
lien, charge, or encumbrance upon any of the property of any Borrower, except in
favor of the Investment Manager and the Lender, to secure the Obligations, (v)
violate any provision of the Certificate of Incorporation, By-Laws or any
capital stock provisions of any Borrower, or (vi) be reasonably likely to have a
Material Adverse Effect.
Section
Five. General
Provisions.
(a) Except
as herein expressly amended, the Credit Agreement and all other agreements,
documents, instruments and certificates executed in connection therewith, are
ratified and confirmed in all respects and shall remain in full force and effect
in accordance with their respective terms.
(b) To
induce the Investment Manager and the Lender to enter into this Amendment, the
Borrowers, jointly and severally, represent and warrant to the Investment
Manager and the Lender that except for the Events of Default set forth in any
prior waiver letter executed by parties, no other Event of Default has
occurred.
(c) This
Amendment embodies the entire agreement between the parties hereto with respect
to the subject matter hereof and supercedes all prior agreements, commitments,
arrangements, negotiations or understandings, whether written or oral, of the
parties with respect thereto.
(d) This
Amendment shall be governed by and construed in accordance with the internal
laws of the State of New York, without regard to the conflicts of law principles
thereof.
IN WITNESS WHEREOF, the
parties to this Amendment have signed below to indicate their agreement with the
foregoing and their intent to be bound thereby.
|
COLUMBIA
PARTNERS, L.L.C. INVESTMENT MANAGEMENT,
as
Investment Manager
|
|||
|
|
|||
|
By:
|
/s/ | ||
|
Name:
Title:
|
|
||
|
NATIONAL
ELECTRICAL BENEFIT FUND,
as
Lender
By: Columbia
Partners, L.L.C.
Investment
Management, its Authorized Signatory
|
|||
|
|
|||
|
By:
|
/s/ | ||
|
Name:
Title:
|
|
||
|
for
itself and as Borrowing Agent, and as successor by merger with each of MTM
Technologies (California), Inc., and MTM Technologies (Texas),
Inc.
|
|||
|
|
|||
|
By:
|
/s/ X.X. Xxxxxxxx III | ||
|
Name:
Title:
|
X.X.
Xxxxxxxx III
Senior Vice President and Chief Financial Officer |
||
|
MTM
TECHNOLOGIES (US), INC.
|
|||
|
By:
|
/s/ X.X. Xxxxxxxx III | ||
| Name: |
X.
X. Xxxxxxxx III
|
||
| Title: |
Senior
Vice President and Chief
Financial Officer
|
||
|
INFO
SYSTEMS, INC.
|
|||
|
By:
|
/s/ X.X. Xxxxxxxx III | ||
| Name: |
X.X.
Xxxxxxxx III
|
||
| Title: |
Senior
Vice President and Chief
Financial Officer
|
||
|
MTM
TECHNOLOGIES (MASSACHUSETTS), LLC
|
|||
|
By:
|
/s/ X.X. Xxxxxxxx III | ||
| Name: |
X.X.
Xxxxxxxx III
|
||
| Title: |
Senior
Vice President and Chief
Financial Officer
|
||
